Opinio Juris: Reflections on Burundi’s Withdrawal from the International Criminal Court

[Jennifer Trahan is Associate Professor, The Center for Global Affairs, NYU-SPS, and Chair of the International Criminal Court Committee of the American Branch of the International Law Association.]

On Friday, October 27, Burundi’s withdrawal from the International Criminal Court’s Rome Statute, filed one year earlier, became effective. This sad event —the first ever withdrawal from the Court to become effective — warrants reflection.

While it is frequently recited that the ICC’s Rome Statute needs to move towards “universality” as to ratifications, we should be concerned that the number of ratifying countries (which had stood at 124), has decreased (to 123). Undoubtedly, the situation could be worse, in that other States Parties that have at times threatened individual or mass withdrawal (particularly African States Parties) have not done so. But, it might behoove us to reflect on the slowing pace of ratifications and now this backwards slide. Burundi’s withdrawal should serve as a wake-up call that States Parties and Civil Society need a revitalized approach to advancing Rome Statute ratifications, because it is only through increasing membership towards universality that the ICC will ultimately escape accusations of double-standards and uneven application of international criminal justice.

Withdrawal of a State Party also illustrates that it is ultimately much more difficult for the ICC to investigate and/or prosecute where state actors are allegedly implicated in crimes. If the state where the crimes occurred is not in favor of the ICC’s involvement, the state can block the ICC from entering its territory, making investigations difficult. Then, the state can refuse to comply with requests for cooperation (as to documents and/or witnesses), and, ultimately, it can ignore any arrest warrants that issue. This is most likely to occur where there has been proprio motu initiation of the ICC’s work (that is, it was the Office of the Prosecutor (OTP)’s initial idea to originate the ICC investigation or prosecution). In such situations the country where the crimes occurred is presumably not in favor of ICC involvement, or it would have made a referral in the first place. (Yes, a State Party, where there has been proprio motu initiation owes Rome Statute cooperation obligations, but these do not always seem to carry the day.)

Where the UN Security Council has referred the situation, one might imagine the Court’s authority would be the strongest, because it could be backed up by the coercive enforcement powers of the UN Security Council. But we all know, this has never happened, and far from exerting the strongest compliance-pull, the situation of Security Council referrals has resulted in no effective follow-up. So here too, the Court is left to try to obtain cooperation from a state that has never sought its intervention and not voluntarily joined the Rome Statute system—so it neither supports the cases being brought, nor does it necessarily support the ICC in any way. Thus, far from the ICC’s power being at its height (which it could be with proper UN Security Council support), the ICC’s power is likely at its lowest ebb.

This then leaves only situations where the State Party has made a self-referral (which presumably means the State would like the ICC to prosecute either rebels or ex-regime officials); only in these situations does one expect the State Party actually has cause to cooperate—but only insofar as the ICC’s work remains aligned with State goals (that is, the prosecutions remain only directed towards rebels or ex-regime officials). In short, the ICC has built-in structural difficulties, stemming from the voluntary nature of the Rome Statute system and a need to rely upon state cooperation. The moment the ICC’s actions do not accord with a state’s self-perceived interests (judged by those in power at the time), the State Party can refuse to cooperate and/or leave the Rome Statute system entirely, as Burundi has now done.

Given all these difficulties, what more can be done to support the ICC?

First, there should be widespread condemnation of Burundi by States Parties at the upcoming International Criminal Court’s Assembly of States Parties. When a country turns its back on justice for the worse crimes of concern to the international community, it is turning its back on its own citizens, prioritizing perceived self-interest in helping perpetuate impunity. (States Parties might also commend The Gambia and South Africa—countries that initially seemed poised on also withdrawing, but ultimately reversed their withdrawals.) A clear distinction should be made between States Parties committed to ensuring accountability for Rome Statute crimes, and non-States Parties, who lack the conviction to endorse the rule of law.

Second, the difficulties the Court is having in terms of non-cooperation need to be more effectively addressed. At present, the Assembly of States Parties is still not playing an effective role in dealing with non-cooperation. An effective role, is one that would impose consequences for violations; absent serious ramifications, non-cooperation will continue. And, of course, most to blame is the UN Security Council. Why make a referral if there is no will to ensure it is effective? One would think the UN Security Council would be concerned about its referral being seen as impotent when it fails to provide follow-up. Perhaps the Prosecutor can state this more forcefully to the Council (although she probably already has) — that by failing to follow up on referrals, the Security Council is undermining not only the ICC’s authority, but also the Security Council’s own authority.

Third, we should be most concerned for the people of Burundi, who will now be effectively unprotected at the international level if crimes against humanity and war crimes are perpetrated against them. Crimes committed prior to the date of Burundi’s withdrawal, would still be within the ICC’s jurisdiction, and could in theory be prosecuted in the future (as the ICC has an open Preliminary Examination). But these could become hard to investigate and/or prosecute if Burundi refuses to cooperate (which we can now assume, despite its treaty obligations to cooperate, which would technically continue). As to ongoing and future crimes one should explore a UN Security Council referral of the situation in Burundi, so the ICC would continue to have jurisdiction going forward—but only if the UN Security Council also agrees to ensure follow-up to make its referral meaningful.

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Welcome to our weekly summary of Syria Deeply’s top coverage of the crisis in Syria.

For Syria Deeply’s ongoing feature, Expert Views, we’re gathering fresh insight and commentary from our expert community. This week, we will focus on how the capture of resource-rich territory from ISIS has altered the playing field for Syria’s oil and gas. We invite you to share your insights here.

Talks resume A fresh round of talks kicked off in the Kazakh capital of Astana on Monday. Delegations from the Syrian government and some armed opposition groups, as well as representatives from Russia, Turkey and Iran, were expected to attend the talks.

Talks in Astana are expected to focus on securing the four de-escalation zones, as well as hostage releases, aid deliveries to besieged areas and the fate of those missing in Syria, according to Al Jazeera.

Last week, United Nations special envoy for Syria Staffan de Mistura announced that the eighth round of Syria peace talks in Geneva are scheduled to begin on November 28.

De Mistura held talks with United States secretary of state Rex Tillerson on Thursday. Following the meeting, Tillerson told reporters: “The U.S. wants a whole and unified Syria with no role for Bashar al-Assad in the government … We do not believe that there is a future for the Assad regime and Assad family. The [family] reign is coming to an end. The only issue is how that should be brought about.”

Deir Ezzor casualties Dozens have been killed in fierce clashes between pro-government forces and the so-called Islamic State in Deir Ezzor over the weekend.

Pro-regime forces, backed by Russian airstrikes, made strategic advances over the weekend, taking control of parts of al-Hamidiyah neighborhood. ISIS carried out counterattacks in the area overnight on Saturday, but pro-regime forces continued their advance, targeting the neighborhoods of Arfi and Ommal, SOHR reported on Monday.

The fierce fighting began after pro-government forces on Thursday seized the T2 oil pumping station west of the ISIS stronghold of Boukamal near the border with Iraq.

Shelling in Damascus suburbs Pro-regime shelling on the Saqba and Hamouriyah districts north of Damascus on Sunday killed at least 11 civilians, including two women, a child and a media activist.

The Eastern Ghouta suburbs of Damascus are part of a designated de-escalation zone, but violence and siege conditions have persisted in the area nonetheless.

On Friday, U.N. human rights chief Zeid Ra‘ad al-Hussein said at least 350,000 people were trapped in the area, calling on all parties to allow food and medicine deliveries. Earlier last week, UNICEF said that more than 1,100 children in the enclave are suffering from acute malnutrition.

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The situation in the Rukban camp for internally displaced persons near the border with Jordan is rapidly deteriorating. International humanitarian groups are close to being overwhelmed, despite local NGOs and rebel groups trying to help out as well.

Community Insight

After the dangerous process of demining Raqqa is completed, the question of who will govern and rebuild the city will become even more crucial and could impact the endgame of the war, writes Syria expert Aron Lund in IRIN News.

Radicalization, attrition and defections mean only questionable partners remain for the U.S. government in the campaign against ISIS in Syria, warns New America Foundation fellow Barak Barfi.

FIRST LOOK

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A bus convoy of ISIS fighters travels from the border of Lebanon to eastern Syria | Photo from Wochit News

The Whack-a-Mole Strategy Against ISIS Carries a Civilian Toll

In mid-October, the US military granted safe passage to hundreds of Islamic State of Iraq and al-Sham (ISIS) militants out of Raqqa – the group’s de facto capital – pursuant an evacuation deal arranged by the city’s civil council and tribal elders. This sanctioned exodus is part of a string of deals, which allow members of the UN-designated terrorist organization to evade capture in exchange for the surrender of territory. Though the US military expressly premises the evacuations on the preservation of civilian life, these agreements have generally been executed only after ground battles and aerial bombardment inflict substantial damage to civilian life and property. Moreover, the evacuation agreements lack a consistent strategy for eradicating extremist militias and the root causes that led to their rise. To build the long-term peace and stability necessary to prevent ISIS’s return, it is imperative the US articulates and implements a strategy for Syria that prioritizes civilian protection and welfare.

The Raqqa evacuation deal, though widely hailed by media as a decisive victory against ISIS, led to several problematic outcomes. On October 14, the US-led Combined Joint Task Force against ISIS issued a press release stating that the evacuation agreement facilitates Raqqa’s liberation while minimizing civilian harm. While the deal did force militants into areas outside of the city, it appeared to have few (if any) conditions. In reality, the fighters simply moved to other ISIS strongholds in Deir ez-Zor province.

The Syria Justice and Accountability Centre (SJAC) is a Syrian-led and multilaterally supported nonprofit that envisions a Syria where people live in a state defined by justice, respect for human rights, and rule of law. SJAC collects, analyzes, and preserves human rights law violations by all parties in the conflict — creating a central repository to strengthen accountability and support transitional justice and peace-building efforts. SJAC also conducts research to better understand Syrian opinions and perspectives, provides expertise and resources, conducts awareness-raising activities, and contributes to the development of locally appropriate transitional justice and accountability mechanisms. Contact us at info@syriaaccountability.org.

Kurdish warnings that they face a potential genocide at the hands of the Iranian-backed forces that have swept through Iraqi Kurdistan over the last ten days “need to be taken seriously,” a leading expert on Kurdish affairs said on Wednesday.

“There is a great fear among the Kurds that they could face another genocide at the hands of the Iraqi government and the Shia militia forces backed by Iran,” Julie Lenarz — the executive director of the Human Security Centre, a London-based think-tank with extensive contacts in Kurdistan — said on a conference call organized by The Israel Project, a US group that closely tracks Iran’s growing military power and support for terrorist proxies in the Middle East.

Strongly criticizing US President Donald Trump’s policy of “neutrality” in the face of the Iranian onslaught that has resulted in the loss of 40 percent of the territory controlled by the Kurdish Regional Government (KRG), Lenarz said there was a serious risk of US and Western “complicity” in a looming civil war “in which we will see the Kurds crushed again.”

Lenarz was speaking hours after the Patriotic Union of Kurdistan (PUK) — one of the main Kurdish political parties — issued a statement noting that “after defeating the Islamic State (ISIS), Kurds are now being drawn into a new wave of sectarian violence by certain radical Shia armed groups that want to impose themselves.”

“If the United Nations, Iraq, and the US do not gain control of the situation, the flames of sectarian conflict might lead to the risk of a Kurdish genocide in the Kurdistani disputed areas,” the PUK warned, as it pleaded for urgent help for thousands of civilians in the Kurdish town of Tuz Khurmatu, which lies south of Kirkuk, the main Kurdish city conquered by Iran and its allies last week.

Shalal Abdul, the mayor of Tuz Khurmatu, said in an interview with Kurdish broadcaster NRT TV that thousands of Kurdish homes and shops had been burned and looted by Iraqi troops and Shia fighters serving under the banner of the Hashd al-Shaabi militia — known in English as the Peoples’ Militia Units (PMU). The KRG’s Independent Commission for Human Rights has accused Hashd al-Shaabi of committing “war crimes” in areas under its control.

Lenarz underlined that the presence of Gen. Qasem Soleimani — commander of the Qods Force of the Islamic Revolutionary Guard Corps (IRGC) — in Iraqi Kurdistan over the last week was “no coincidence.” Soleimani is reported by some observers to have explicitly threatened the Kurds with the use of overwhelming force if they refused to withdraw from Kirkuk.

“Wherever Solaimani goes, he leaves a trail of death and destruction, and it’s no different this time,” Lenarz said.

Lenarz remarked that the Trump administration’s refusal to side with the Kurds meant that “Iran is laughing while a long term US ally is humiliated and defeated.” Meanwhile, she said, her Syrian Kurdish contacts have expressed fear that they are next in line to be abandoned by the US to the Iranians, now that Raqqa — the capital of the ISIS “caliphate” — has fallen to Kurdish and Syrian opposition forces.

Lenarz also denounced the use of military equipment supplied by the US to the Iraqi government for external defense — including humvee military trucks and M1 Abrams tanks — in the assault on the Kurds. Earlier this week, hundreds of Kurds demonstrated outside the US Consulate in Erbil, the capital of the KRG, holding signs alerting Americans to “Iranian aggression with your weapons.”

“It’s hard to overstate what the Iranians have pulled off over the last two weeks,” Lenarz remarked. “By denying the clear evidence of Shia militia activities on the ground, and by abandoning the Kurds, Washington effectively legitimized Solaimani’s scheme.”

Originally promised independence by Britain and France at the end of World War I, the Kurds were instead divided between Turkey, Iraq, Iran and Syria in 1923. Since that time, their history has been marked by continued attempts to gain independence with little outside assistance, and often resulting in persecution, ethnic cleansing and genocide.

In 1988, Saddam Hussein’s regime in Baghdad launched “Operation Anfal” in the same territories now occupied by Iranian-backed forces, using chemical weapons and high-explosive air attacks against the Kurdish population that left thousands dead, around 1.5 million destitute and more than 3,000 communities razed to the ground.

Commenting on the Operation Anfal atrocities, the British historian David McDowall wrote that at the time, “the West was generally inclined to dismiss Kurdish claims of genocide, either because they were politically inconvenient, or because it was suggested such reports were probably wild exaggerations.” McDowell went on to note that evidence collected by human rights groups after the First Gulf War “showed that previous Kurdish claims were not only incontrovertible, but also in many cases an understatement of the ordeal through which Iraq’s Kurds were then passing.”

The latest assault against the Kurds comes at the close of the military campaign against ISIS, in which Kurdish forces in both Iraq and Syria have played a critical role. On September 25, ninety-three percent of participants in an independence referendum in Kurdistan voted in favor of a sovereign Kurdish state. Kurdish leaders have now offered to “freeze” moves to implement the referendum in the hope of securing an end to the violence.